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<br /> t'ch �'ational 4"i1ali e Federation v. Gorsuch
<br /> f 18 ERC 1115
<br /> r the ��_ how disastrous the implications of its misguided litigating tactics, we must con-
<br /> interpretation. clude that its interpretation does in fact
<br /> atory process Gas Consumers Group v. United States merit full deference on the basis of agen-
<br /> f c expertise.
<br /> leous r-, D artment o f culture, N o. 7 9-1336, — Y P
<br /> A ac- F.2d — , — , slip op. at 30-31 (D.C. Cir.
<br /> 'rally. �;,= Oct. 1, 1982) (en banc) (emphasis in III. THE REASONABLENESS OF
<br /> TA's original) (footnote omitted).41 Also, def-' EPA'S INTERPRETATION
<br /> how- erence is not a unitary concept, to be
<br /> y.its applied with equal force to all issues in.a- We have concluded that in this case,
<br /> EPA deserves eat
<br /> d in � case. If some issues involve scientific great deference; with that
<br /> yen- expertise and others do not, the agency in mind, we now turn to the core issue of
<br /> ig in will receive greater deference on the statutory construction. Statutory analysis
<br /> Aicy issues that do. In short, we must recog- begins, of course, with the language of
<br /> Lion nize that the standard for deference to an the statute. YYatt v. .41asha, 451 U.S. 259,
<br /> hich agency's interpretation of its governing 265 (1981), SEC v. Falstaff Brewing Corp.,
<br /> statute "defies generalized application 629 F.2d 62, 68 (D.C. Cir.), cert. denied,
<br /> and demands, instead, close attention to 449 U.S. 1012 (1980). In virtually every
<br /> we the nature of the articular problem case, however, it does not end there but
<br /> eral faced by the agency."P p continues with a review of the legislative
<br /> !�" history. Indeed, the Supreme Court has
<br /> u, at In this case, it is easy to see why the specifically rejected an interpretation of
<br /> '.2d district court concluded that the agency's the Clean Water Act based on the statuto-
<br /> (en determination was policy-free. The agen- ry language alone:
<br /> RC cy advanced no policy arguments and To the extent that the Court of eels
<br /> excluded ase resisted the Wildlife Federation's at- uded reference to the legislative
<br /> ;id- tempts to introduce into evidence docu- exc f the Clean Water Act
<br /> for ments concerning the 1974 and 1978 history o e [ ] in
<br /> ted reconsiderations.43 Nonetheless, those discerning its meaning, the court was in
<br /> er- documents are legitimately part of the error .... "[T]here certainly can be no
<br /> record before us, and we cannot ignore `rule of law' which forbids its use,
<br /> their import. They show that EPA's inter- however clear the words may appear on
<br /> nal reconsiderations did give primary `superficial examination.
<br /> he emphasis to the policy implications of the Train v. Colorado Public Interest Research
<br /> riy point source-nonpoint source choice; the Group, Inc., 426 U.S. 1, 9-10 [8 ERC 20571
<br /> ith agency believed that the statute gave it (1976) (quoting United States v. American
<br /> he sufficient leeway to change its mind on Trucking Associations, 310 U.S. 534, 543-44
<br /> of treating dams as nonpoint sources if (1940)).45 The district court's opinion
<br /> iot policy considerations dictated such a paid too much attention to the broad
<br /> In- choice.44 Thus, while we lament EPA's stated purposes of the Act, and too little
<br /> ris attention to the legislative history that
<br />:er.. 41 See also Office of Consumers' Counsel V. must inform its view of those purposes.
<br /> =- Federal Energy Regulatory Comm'n, 653 F.2d If we conclude that EPA's interpreta-
<br /> ng 1132, 1141 (D.C. Cir. 1980) ("the question of tion is inconsistent with the language of
<br /> us FERC'any jurisdiction
<br /> s a or legal
<br /> ecial zed judgment- the Clean Water Act, as interpreted in
<br /> eL ' which FERC possesses in otherareas"); il- light of the legislative history, or if it
<br /> .to. derriess Soc'y v. Morton, 479 F.2d 842, 866 [4 "frustrate[s] the policy that Congress
<br /> A- ERC 19771 (D.C. Cir.) (en banc), cent. denied, sought to implement," no amount of
<br /> 411 U.S. 917 [5 ERC 1208] (1973). deference can save it. Democratic Senatorial
<br /> 43 Natural Resources Defense Council, Inc. Campaign Committee, 454 U.S. at 32; see
<br /> C v. SEC, 606 F.2d 1031, 1050 (13 ERC 1321] SEC v. Sloan, 436 U.S. 103, 118 (1978).
<br />�� (D.C. Cir. 1979) (footnote omitted) (discussing
<br /> "arbitrary and capricious" review but noting in 45 See also Watt v. Alaska, 451 U.S. 259, 266
<br /> u) dictum, id. at 1050 n.24, that this statement n.9 (1981) (" `[I]t is one of the surest indexes
<br /> 1 "would appear to hold true for other scan- of a mature and developed jurisprudence not
<br /> dards [of review]"). to make a fortress out of the dictionary; but to
<br /> 43 See Trial Transcript, Nov. 4, 1980, at-12- remember that statutes always have some
<br /> Q' f 20. purpose or object to accomplish, whose sym-
<br /> I 44 See Letter from Alan Kirk to Regional pathetic and imaginative discovery 's the surest
<br /> 1 Counsels,supra note 40; EPA Office of General . guide to their meaning.' ") (quoting Cabell v.
<br /> Counsel, Action .Venorandum on Issuing NPDES Markham, 148 F.2d 737, 739 (2d Cir.) (L.
<br /> i y Permits to Dams, supra note 40. Hand-J.), affd, 326 U.S.404 (1945)).
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